Right to be forgotten: How a prudent Karnataka HC judgment could pave the way for privacy laws in India

In January, in a rare case, the Karnataka High Court accepted, approved and upheld the concept of and the right to be forgotten. In the Indian context, this right is unheard of – it comes at a time when because of the internet, obtaining personal information is swift and easy, and there is an intense debate on the right to privacy versus the right to information.

The ‘right to be forgotten’ has been in practice in Argentina and the European Union since 2006, and it allows for the lawful removal of personal information of an individual if such request is made. The right is seen as significant in these jurisdictions as it can “determine the development of their life in an autonomous way, without being perpetually or periodically stigmatised as a consequence of a specific action performed in the past”.

The etymological background of the right can be traced back to the ‘right to oblivion’ (droit à l’oubli) in the French jurisprudence. The right was utilised by former offenders, who had served their sentence, to object to publication of materials regarding their offense and consequent conviction – it was a right seen necessary to provide for easier social integration of erstwhile offenders.

A file photo of Karnataka High Court. Agencies

Thereafter, European Union Data Protection Directive, 1995 acknowledged and approved the right to be forgotten that provides for a right to all people from member states to rectify, erase and block all data that does not comply with the provisions of the directive.

The Karnataka High Court upheld a woman’s 'right to be forgotten', as her father’s writ petition stated that he did not want her name to appear on search engines in association with digital records of the high court of a previous criminal case. Justice Anand Bypareddy stated: “This is in line with the trend in western countries of the ‘right to be forgotten’ in sensitive cases involving women in general and highly sensitive cases involving rape or affecting the modesty and reputation of the person concerned.”

The father of the woman had moved the court seeking orders to block her name in an earlier order passed by the court, as his daughter feared the consequences of her name associated with this earlier matter and was afraid that this would affect her relationship with her husband and her reputation and good-will in society.

Previously, she had approached the court and had filed a case against a man who she had claimed she was not married to, and demanded that the marriage certificate be annulled. However, the parties reached a compromise resulting in the withdrawal of her complaint, thereby, the high court quashing the case against the man.

Acting upon her plea for recognition of her ‘right to be forgotten’, the high court directed to its registry: “It should be the endeavour of the registry to ensure that any internet search made in the public domain ought not to reflect the petitioner's daughter's name in the cause-title of the order or in the body of the order in the criminal petition.”

In the Indian context, the right to be forgotten poses a legal dilemma. While the significance of such a right exists, India has no legal provision, neither in the Information Technology (IT) Act 2000 (amended in 2008) or the IT Rules, 2011. And while the judicial construction of such a right should ideally be the balance between the right to privacy and the right to information and free speech, it is surprising to know and acknowledge that India does not yet have a privacy law either.

Currently, the Delhi High Court is also hearing a matter that concerns the right to be forgotten. In this case, the petitioner has requested for the removal of a judgment involving his mother and wife from an online judgment portal.

According to the petitioner, his name on the judgment is affecting his reputation and employment opportunities. Following this, the Delhi High Court had asked recently whether the right to privacy included the right to delink from the Internet the irrelevant information – from the Centre and Google. Google Inc had stated to the Delhi High Court that there is no reason or creation of a separate legal framework under 'right to be forgotten' to delink 'irrelevant information' from the internet.

For now, there is no way to pin down how the right to be forgotten would be molded by the Indian courts; currently, it is a nascent judicial concept that will take some amount of debate and deconstruction to make sense. However, the Karnataka High Court judgment must be applauded for what it is, prudent and inventive.